Justice Anthony Kennedy: "Well, suppose it were an advocacy organization that had a book. Your position is that under the Constitution . . . the book itself could be prohibited."
Deputy Solicitor General Malcolm Stewart: "If the book contained the functional equivalent of express advocacy."—Exchange during oral arguments over Citizens United, 2009
"A campaign document in the form of a book can be banned."— Campaign finance advocate Fred Wertheimer, of Democracy21
Before last week’s Banned Book Week recedes much farther in the rearview mirror, let’s pause for a moment to note this curious fact: Some of those who oppose censorship also support it.
For thoughtful people, Banned Books Week is tennis with the net down. The targets are easy and mostly deserve the hits they take: the prudes who object to the potty humor of Captain Underpants. The narrow-minded scolds who can’t see past the racial language in To Kill a Mockingbird to its broader values. The zealots who think harmless Harry Potter leads to Satanism.
Most intelligent people laugh at such folk. They think, or at least claim to think, that efforts to restrict access to books is so flatly wrong it’s not even worth discussing. In a contest pitting what the American Library Association calls “the value of free and open access to information” against any other values, the former wins every time. Almost.
For obvious reasons, the media give Banned Books Week lots of attention. The New York Times has run countless features on it, from “Ways to Celebrate Banned Books Week” and “What Are You Doing for Banned Books Week?” to a 2009 editorial appreciation of the ALA’s Judith Krug, who established Banned Books Week back in the ’80s, “during one of the nation’s periodic censorship epidemics.” On The Huffington Post last week, visitors could read “10 Gorgeous Quotes From Banned Books” and “Every Week is Banned Book Week for Chicanos” and an infographic regarding “Banned Books by the Numbers.” It was the same at CNN, the Los Angeles Times and so on.
There’s a certain smugness about all of this—an aroma of self-congratulation from those secure in the knowledge that they are on the side of the angels. That aroma mixes poorly with the sulfurous fumes belched out in the continuing war over campaign finance law.
Ever since the Supreme Court’s 2010 ruling in Citizens United, liberals have railed against the decision, which they say “opened the floodgates” to unlimited corporate spending on elections. President Obama claimed the decision “strikes at democracy itself.” Others called it “reckless,” “dangerous,” “ludicrous,” “radical,” “absurd” and so on. Efforts to reverse the decision culminated last month in a Senate vote on a constitutional amendment, sponsored by 48 Democrats.
There’s just one thing missing from all the outrage over the Citizens United ruling: the facts.
The question before the court in that case was whether the government had the power, as laid out in the McCain-Feingold law, to prohibit the distribution of a movie about Hillary Clinton in the 30 days before a federal primary election because it was, ostensibly, an “electioneering communication”—one that advocated for or against electing a political candidate, or that amounted to the functional equivalent of same—that had been produced by a (nonprofit) corporation.
That raised another quite obvious question: If the government could forbid distribution of a movie, then could it also forbid distribution of a book? The government’s lawyer gave the only logically consistent answer possible: yes. The Supreme Court wisely said: No, the government cannot ban books—nor can it ban movies, or TV ads, or billboards, or other forms of independent communication. No matter who produces them, and no matter when.
This offends progressives because, as Minnesota Sen. Al Franken said recently, it “gives corporate special interests the ability to spend unlimited amounts of money in our elections.” Franken was one of the sponsors of the Senate amendment, which lost by a narrow vote. Also standing behind the measure was The New York Times, which—like the Los Angeles Times, The Huffington Post, and good liberals everywhere—has fulminated against Citizens United. During one of the nation’s periodic censorship epidemics, you might say.
Because those who seek to roll back Citizens United want precisely what the American Library Association objects to: They want to limit the free flow of information. They have reasons for this, which they think are good ones: ensuring a level playing field. Preventing big money from drowning out smaller voices. Stopping corporate interests from influencing politicians.
Well, those who want to restrict access to Captain Underpants and To Kill a Mockingbird have their reasons, too, which they also think pretty highly of. Liberals cannot open the door to censorship for reasons they consider good without also opening the door for reasons they consider not-so-good. Once they admit some books might be banned for some reasons, then the relevant question ceases to be whether we should ever ban books at all and devolves to a lesser one: which reasons qualify as good enough.
The hard truth is that those who support a constitutional amendment to overturn Citizens United are book banners, at least in principle. And once you have conceded the principle on book-banning, you have conceded the entire issue.